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2019 DIGILAW 494 (ALL)

Malti Devi v. State of U. P.

2019-02-25

NAHEED ARA MOONIS, VIRENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard learned Counsel for the petitioner (complainant) and learned AGA and have been taken through the record. 2. In compliance of order of this Court dated 22.2.2019, Sri Sanjay Kumar Gupta, the Investigating Officer of Case Crime No. 167 of 2018, under Sections 342, 376, 506 IPC, Police Station Paschim Sharira, District Kaushambi is present before this Court. 3. The instant petition has been filed seeking following reliefs: "(A) Issue a writ order or direction in the nature of mandamus directing the respondent No. 3 to take the appropriate action in view of first information report dated 2.10.2018 lodged by petitioner registered as Case Crime No. 167 of 2018, under sections 342, 376, 506 I.P.C. Police Station Paschim Sharira, District Kaushambi as the respondent No. 4 due to influence of some political pressure is not taking the proper action against the named accused respondent No. 5. (B) Issue a writ order or direction in the nature of mandamus directing the concerned respondent to call the progress report of case crime No. 167 of 2018 under sections 342, 376, 506 I.P.C. Police Station Paschim Sharira, District Kaushambi, in which the concerned Police is fully inactive. (C) Issue any other suitable writ order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. (D) Award the cost of the petition to the petitioner." 4. The submission of learned Counsel for the petitioner/first informant is that the first information report was lodged on 18.4.2017 against Virendra Lodh vide Case Crime No. 107 of 2017 under sections 457/380 IPC Police Station Paschim Sharira District Kaushambi in respect of theft in her house. 5. After registration of the case, the Investigating Officer (the respondent No. 5) swung into action and recovered the stolen ornament from one Virendra Kumar. Thereafter the petitioner was assured by the respondent No. 5 that he will get her entire stolen ornament recovered. The petitioner first informant approached to the respondent No. 5 on call at his house. The respondent No. 5 on either pretext got the petitioner entered in his room and began to infatuate her placing latch. Thereafter the petitioner was assured by the respondent No. 5 that he will get her entire stolen ornament recovered. The petitioner first informant approached to the respondent No. 5 on call at his house. The respondent No. 5 on either pretext got the petitioner entered in his room and began to infatuate her placing latch. When the petitioner comprehended his foul deed, she tried to set free from his clutch, the respondent No. 5 lost his equilibrium and got the victim laid on the bed and caused severe terror and trepidation in her mind by pointing the revolver. The victim was handcuffed and defenceless thus the respondent No. 5 made carnal contact and subjected to coitus threatening her to face dire and terrible consequences. The petitioner underwent the monstrous and beastie act of the respondent No. 5 carrying indelible and indestructible blot on her life. The petitioner unveiled her agony before the police personnel of concerned police station, the grievance of the petitioner remained unattended rather she was scolded and rebuked by the police personnel to depart immediately therefrom. In these circumstances, the petitioner moved an application under section 156 (3) Cr.P.C. on 3.7.2017 before the learned Magistrate Kaushambi. The learned Magistrate directed the concerned station officer to register the first information report against the respondent No. 5 but the official of concerned police station dilated & oscillated the matter so as to defeat the ends of justice. After great persuasion and incessant endeavour, the first information report was lodged on 2.10.2018 against Keshav Das (respondent No. 5) vide Case Crime No. 342/376/506 IPC. The statement of the victim (petitioner) was recorded under section 164 Cr.P.C. before the Court below on 12.12.2018, the petitioner narrated the suffering and woe in a natural and coherent manner afflicted upon her by the respondent No. 5. The respondent No. 5 earlier being the Investigating Officer in Case Crime No. 107 of 2017, under sections 457/380 IPC was extending constant threats and intimidation to the petitioner to encounter dreadful and heartbreaking consequences in case she does not settle the score by compromise. The petitioner has been running from pillar to post to heal her wounds but the respondent authorities has been procrastinating the same thus under the tremendous and astounding circumstances, the petitioner has knocked the door of pristine temple of justice for alleviating her agony and affliction. 6. The petitioner has been running from pillar to post to heal her wounds but the respondent authorities has been procrastinating the same thus under the tremendous and astounding circumstances, the petitioner has knocked the door of pristine temple of justice for alleviating her agony and affliction. 6. Regard being had to the psychical and spiritual distress and agony of the petitioner, this Court directed the learned AGA to seek instructions with regard to the progress of Case Crime No. 167 of 2018, under sections 342, 376, 506 IPC vide order dated 14.2.2019 and the case was directed to be placed on 20.2.2019. On 20.2.2019, learned AGA sought further time to comply with the order dated 14.2.2019. On the request of learned AGA, the case was slated fixing 22.2.2019. On 22.2.2019, learned AGA was directed to ensure presence of the Investigating Officer of Case Crime No. 167 of 2018, under sections 342, 376, 506 IPC on 25.2.2019. Pursuant to the order dated 25.2.2019, the Investigating Officer Sanjay Kumar Gupta appeared before this Bench. 7. The submission of learned AGA is that in the aforesaid case, after investigation, the final report has been submitted on 18.12.2018 by the Investigating Officer Sri Sanjay Kumar Gupta presently posted in Mohabbatpur Painsa Thana, Kaushambi and the same has been forwarded to the Court concerned on 20.2.2019. 8. It is submitted by learned Counsel appearing on behalf of the petitioner that statement of the victim petitioner had already been recorded on 12.12.2018 conspicuously demonstrating about the complexity of the respondent No. 5 who was investigating the case pertaining to the theft in the house of the petitioner rather the Investigating Officer designed all ways of shielding the respondent No. 5 who hurriedly in a lackadaisical manner submitted final report on 18.12.2018 which has been forwarded to the learned Magistrate hence the Investigating Officer of case Crime No. 167 of 2018, under sections 342, 376, 506 IPC deserves to be hauled up by this Hon'ble Court. 9. Per contra learned AGA contended that the Investigating Officer found that since there is conflict in the statement recorded under section 161 and 164 Cr.P.C. which creates suspicion denting untruthfulness and unfairness about the said incident hence the Investigating Officer has rightly submitted final report. 9. Per contra learned AGA contended that the Investigating Officer found that since there is conflict in the statement recorded under section 161 and 164 Cr.P.C. which creates suspicion denting untruthfulness and unfairness about the said incident hence the Investigating Officer has rightly submitted final report. After filing of the final report, the learned Magistrate may also take cognizance on the basis of the material placed on record by the investigating agency and also it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation in exercise of powers under section 173 (8) Code of Criminal Procedure. The investigation must be unbiased, honest, just and in accordance with law so as to bring out the truth of the case before the Court of competent jurisdiction. 10. We have gone through the statement recorded under section 164 Cr.P.C. of the petitioner which clearly points out serious allegations and imputations against the respondent No. 5 and in this view of the matter, the submission of the final report speaks in volume as to how the investigation has been conducted in the present case. The slight variation in the statement of the victim and/or section 161 or 164 Cr.P.C. cannot be stifled so as to set free the perpetrator of the crime. The statement under section 164 Cr.P.C. of the victim was recorded on 12.12.2018 and final report was submitted on 18.12.2018. The mode and manner adopted by the Investigating Officer itself reflects predilection and proclivity towards the respondent No. 5. There are clear allegation against the respondent No. 5 in the writ petition. In our opinion police officers have acted vindictively yet we desist ourselves from initiating any action on the errant and depraved police officers. 11. This Court is well conscious that after filing of the final report, the first informant will have option to file the protest petition and the Court should not intervene in the matter of investigation vested in the police authorities. This matter requires de-novo investigation in view of malicious and prejudicial act of the investigating authorities. 11. This Court is well conscious that after filing of the final report, the first informant will have option to file the protest petition and the Court should not intervene in the matter of investigation vested in the police authorities. This matter requires de-novo investigation in view of malicious and prejudicial act of the investigating authorities. When any illegality or mala-fide action on the part of the investigating authorities is brought to the notice at the behest of an aggrieved person, this Court would certainly step in to correct such injustice or failure of justice to set right the illegality or mala-fide action of the investigating authorities in exercise of power under Article 226 of the Constitution of India. 12. In the light of prolix and verbose discussion, this Court is of the view that the final report submitted by the Investigating Officer in case Crime No. 167 of 2018, under sections 342, 376, 506 IPC is not strictly in accordance with the provisions of law hence the same is hereby rendered nugatory. 13. Regard being had to the facts and circumstances of the case, it is provided that Superintendent of Police, Kaushambi shall take effective steps to supervise over the matter issuing mandate to the responsible and Authorised Officer not below the rank of Circle Officer who is expected to conduct unbiased, fair and impartial investigation at the earliest avoiding deferment on flimsy and perfunctory grounds. 14. It is compatible and apropos to elucidate at this stage that the Investigating Officer to whom investigation shall be entrusted by Superintendent of Police Kaushambi shall get full assistance from the respective parties and the Court concerned shall make available all the requisite documents sought by him on moving the application. 15. The writ petition is accordingly disposed of.